[ZESTCaste] Analyzing The ‘OBC-Minority' Sub-Quota--Part III

4.5% Sub-Quota for OBCs within Minorities: The 'policy' and'technical' dimensions

Let me state right at the outset that the recent 4.5% sub-quota wasnot a demand raised by the pasmanda movement but rather is informed bythe second recommendation of the Ranganath Mishra Report which is asfollows: "[…] we recommend that since according to the MandalCommission Report the minorities constitute 8.4 percent of the totalOBC population, in the 27 percent OBC quota an 8.4 percent sub-quotashould be earmarked for the minorities with an internal break-up of 6percent for the Muslims (commensurate with their 73 percent share inthe total minority population at the national level) and 2.4 percentfor the other minorities […]" (Justice Ranganath Mishra 2007, 153).That is why the statement of the Minister of Minority Affairs in LokSabha on 28 th December 2011 is misleading when it suggests that: "Forseveral years, members of other backward classes belonging toreligious minorities have been demanding that a separate quota shouldbe earmarked for them out of the 27 percent reserved for OBCs"(Ministry of Minority Affairs 2011). Quite clearly this was never apasmanda demand but is much closer to the second recommendation of theRanganath Mishra Commission to be considered in case the firstrecommendation of a blanket 10% reservation for all Muslims faced any'insurmountable obstacles'! With this opening remark let me first ofall examine the major objections to the sub-quota raised by varioussections.

The first objection raised by many OBC groups is thatthis sub-quota is eating into the existing OBC quota and that such aprovision should be made only after enlarging the overall OBC quotaonce the 50% cap on reservations is done away with (Correspondent2011). This objection can be met by stating that in this sub-quota nonew castes are being added to the existing OBC list rather the alreadylisted OBCs belonging to minorities are being brought within a 4.5%sub-quota informed by differentiated levels of backwardness within theOBC category. Since the OBC quota belongs as much to the majority-OBCsas to the minority-OBCs the question of 'eating up' is an irrelevantobjection. Further, there can be no principled objection to sub-quotasper se as there are already sub-quotas in place in many State OBClists—Kerala has 8 sub-quotas, Andhra Pradesh and Karnataka have 5each, Tamil Nadu and Bihar have 2 respectively. As far as the 50% capon reservations is concerned it was articulated by the Balaji judgment(1963) of the Supreme Court and reiterated by the Mandal judgment in1992. It is important to note what Dr. B. R. Ambedkar had said on thisissue during the Constituent Assembly debates:

Supposing, for instance, we were to concede in full the demand ofthose communities who have not been so far employed in the publicservice to the fullest extent, what would really happen is, we shallbe completely destroying the first proposition upon which we are allagreed, namely, that there shall be an equality of opportunity. Let megive an illustration. Supposing, for instance, reservations were madefor a community or a collection of communities, the total of whichcame to something like 70 per cent of the total posts under the Stateand only 30 per cent are retained as the unreserved. Could anybody saythat the reservation of 30 per cent as open to general competitionwould be satisfactory from the point of view of giving effect to thefirst principle, namely, that there shall be equality of opportunity?It cannot be in my judgment. Therefore the seats to be reserved, ifthe reservation is to be consistent with Sub-clause (1) of Article 10,must be confined to a minority of seats (cited in Reddy, 1992).

Also, the Mandal judgment clearly states:

While 50% shall be the rule, it is necessary not to put out ofconsideration certain extraordinary situations inherent in the greatdiversity of this country and the people. It might happen that infar-flung and remote areas the population inhabiting those areasmight, on account of their being out of the main stream of nationallife and in view of conditions peculiar to and characteristical tothem, need to be treated in a different way, some relaxation in thisstrict rule may become imperative. In doing so, extreme caution is tobe exercised and a special case made out. In this connection it iswell to remember that the reservations under Article 16 (4) do notoperate like a communal reservation. It may well happen that somemembers belonging to, say Scheduled Castes get selected in the opencompetition field on the basis of their own merit; they will not becounted against the quota reserved for Scheduled Castes; they will betreated as open competition candidates (Reddy 1992).

So, quite clearly the articulation of 50% cap on the quota has astrong conceptual foundation and in all likelihood will meet anadverse judicial review even if the legislature decides to do awaywith it through a Constitutional amendment. However, the only optionof including it within the 9 th Schedule and thereby exempting it fromjudicial review seems a very distant possibility in the presentcircumstances.

The second objection that has been prominently raisedby the BJP is that it is a 'communal' or 'religious' quota andtherefore it is unconstitutional. This objection can be met by statingthat it is not a sub-quota for 'Muslims' alone but rather for the OBCsbelonging to all minorities, especially the Muslims, Sikhs andChristians—in other words, this is a complex quota involvingidentities like 'caste', 'religion' and also 'class' because of theprovision of creamy layer for the OBC quota introduced by the Mandaljudgment. Besides, in the states of Karnataka (interestingly ruled byBJP at present) and Kerala sub-quotas for 'Muslims' within the OBCquota have been in practise for long and no one has seriouslychallenged that thus far. What is more surprising is that in bothKarnataka and Kerala even a few upper caste Muslim groups like Syeds,Pathans, Thangals, etc., who in all likelihood would qualify as'pseudo-communities' (a term employed by the Mandal Judgment) are alsoincluded in the sub-quota for Muslims within the OBC category. Butthis is probably due to the invisibilization of caste and the lack ofa caste-based political movement within South Indian Muslims incontrast to the situation in North India. However, sociologicallyspeaking caste practises are very much alive within Muslims in SouthIndian states as well (D'Souza 1973). In the more recent case ofAndhra Pradesh where a blanket 5% reservation for all Muslim groupswas appropriately struck down by the Andhra High Court as being'unconstitutional', it will be useful to recall that a revisedsub-quota of 4% for lower caste Muslims was rejected by the AndhraHigh Court not because it was unconstitutional but because "[…] themethodology followed by the Backward Classes Commission to identifythose who would benefit was unsustainable […] the court was notsatisfied with the yardstick used to define 15 categories of Muslimsas backward and said the BC Commission's action was 'mechanical andperfunctory'" (NDTV 2010). However, the Supreme Court later intervenedand through an interim order had upheld the 4% quota for OBC-Muslimsin Andhra Pradesh but also referred the matter to a Constitution Benchsubsequently (PTI 2010). The matter is subjudice in the Supreme Courtand the confusion will clear once the court takes a call on that.

The third objection often raised by many groups isregarding the quantum of the sub-quota: some feel it is less while theothers feel it is probably on the higher side. It seems that thesub-quota has been calculated from the data provided by the MandalReport. The Mandal Report had calculated the BC-Hindus to be about43.7% of the total Indian population which amounted to 52% of theHindu population (83.84% at that time). Applying this rule of thumb,since there was no data available on the OBC population withinminorities, it calculated the OBC-Minority population as 8.4% (52% oftotal minority population of 16.16% then). Hence, the totalpopulation of Hindu OBCs estimated by the Mandal Report was 43.7% andthat of minority OBCs as 8.4% thereby taking the total OBC populationroughly to 52%. Now in order to stay within the 50% cap the populationof 52% OBCs was granted 27% quota. If we go by this logic then 4.5%sub-quota for OBC-minorities seems quite adequate in arithmetic terms.However, according to P. S. Krishnan this seems to be on the lowerside. As per his calculations the OBC-Minorities should be entitled toa 6.75% sub-quota, out of which Muslim-OBCs alone have a legitimateclaim of about 5.5% (Krishnan 2012).

In the light of the above discussion most of theobjections to the 4.5% sub-quota do not seem to be very sound onesfrom a technical point of view. However, many pasmanda activists alsoseem to be very sceptical with regard to the expected results andbenefits from the sub-quota. Largely because they feel the OBC Muslimswill face a real competition from the Sikh-OBCs (around 1.2%population) and the Christian-OBCs (around 1.4% population),especially the latter because of a strong tradition of education dueto the intervention of the Church amongst them. So, if Rashid Alvi,the Congress spokesperson, suggested that OBC Muslims (about 11%population) were already able to corner about 3% benefits from theexisting scheme of 27% OBC quota (Jha 2011), then one is not sure ifthere is going to be any significant improvement beyond 3% due to the4.5% sub-quota if one takes into account the competition from otherOBC-Minorities (Jha 2011). In fact, one should not be very surprisedif the actual representation goes below the 3% that the OBC-Muslimswere already able to corner within the 27% OBC quota. But one can onlywait and take a call on that once the initial results start pouring inafter the sub-quota is implemented.

D'Souza, Victor S. "Status Groups among the Moplahs on the South-WestCoast of India." In Caste and Social Stratification among the Muslims, edited by Imtiaz Ahmad, 45-60. Delhi: Manohar Book Service, 1973.